Statute of Limitations Tolled Until Defendant Identified by DNA; Police Had “Tacit Consent” to Enter Apartment

The Fourth Department determined the statute of limitations was tolled until defendant was identified through DNA collected in an unrelated conviction.  In addition, the Fourth Department determined the police had “tacit consent” to enter defendant’s apartment:

Here, “[t]he record supports the court’s determination that the identity of defendant as the sexual assailant, and thus his whereabouts, were not ascertainable by diligent efforts” before 2008, when the State DNA Indexing System matched the DNA profile from the semen found on the victim’s night shirt with DNA obtained from defendant in conjunction with an unrelated 2007 conviction … .  * * *

Even assuming, arguendo, that there was a warrantless arrest of defendant in his apartment, we note that it is well settled that “tacit consent by a person with apparent authority . . . [is] sufficient to obviate any possible violation of the Payton rule”…. Here, the People established that the police officers entered the apartment with the consent of defendant’s father…. Although “the police may not have received express permission to enter the premises, [the] gesture [of defendant’s father] of opening the door, leaving it wide open, and then walking  away from it could certainly be interpreted by the police to consist of tacit approval for them to enter”….  People v Sigl, 716, 4th Dept, 6-14-13